Dismissed

Dr Shivakumarswami v. H B Ramu (Split Up in S.C.NO.78/2016)

Karnataka HC13 Dec 2022CRL.A/1956/2017

Case brief

AI extract

What is this about?

High Court rejected the criminal appeal filed by the complainant against the acquittal of the accused. The Court observed that the underlying dispute was settled via compromise in the immediately connected civil suit and matrimonial proceedings, thereby depriving the appeal of any force or substance. Consequently, the appeal was rejected, and the acquittal of the accused was confirmed.

What did the court decide?

The criminal appeal and the I.A. No.2/2017 seeking permission to prosecute are rejected and disposed of; acquittal of accused confirmed.

Dr Shivakumarswami Vs H B Ramu (Split Up in… — Murder and Culpable Homicide | Karnataka HC (2022)

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CRL.A No. 1956 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE C M JOSHI CRIMINAL APPEAL NO. 1956 OF 2017

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BETWEEN:

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Digitally signed by D K BHASKAR Location: High Court of Karnataka

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DR. SHIVAKUMARSWAMI S/O T.L.SHIVALINGAIAH, AGE 40 YEARS, DENTAL DOCTOR, MIMS HOSPITAL, MANDYA CITY.

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(BY SRI. HARIKRISHNAN B R.,ADVOCATE)

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…APPELLANT

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AND:

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H B RAMU (SPLIT UP IN S.C.NO.78/2016) S/O BOREGOWDA, AGE 60 YEARS, R/AT HOLALU VILLAGE, MANDYA TALUK.

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H.R.VINAY S/O H.B.RAMU, AGE 37 YEARS, R/AT HOLALU VILLAGE, MANDYA TALUK.

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2 - CRL.A No. 1956 of 2017

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SMITHARAMU W/O DR.SHIVAKUMARSWAMI AGE 36 YEARS, R/O DOCTORS COLONY, MIMS, MANDYA.

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H.B.THAMMANNA S/O BHAIREGOWDA, AGE 45 YEARS, R/AT HOLALU VILLAGE, MANDYA TALUK.

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STATE OF KARNATAKA REP. BY MANDYA EAST POLICE, MANDYA, NOW REP. BY PUBLIC PROSECUTOR HIGH COURT HIGH COURT COMPLEX, BANGALORE 560 001.

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…RESPONDENTS

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(BY SRI. C. N. RAJU.,ADVOCATE FOR R-1 TO R-4; SRI. K. P. YASHODHA – HCGP FOR R-5)

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THIS CRL.A. FILED U/S.372 CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 22.05.2017 PASSED BY V-ADDITIONAL DISTRICT AND SESSIONS COURT, MANDYA IN SPL.C.NO.83/2015 AND S.C.NO.78/2016 FOR THE OFFENCES UNDER SECTIONS 143, 147, 341, 323, 307, 506 R/W 149 OF IPC.

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CRL.A No. 1956 of 2017

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THIS CRIMINAL APPEAL, COMING ON FOR ‘HEARING’, THIS DAY, K. SOMASHEKAR .J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant / complainant / victim challenging the judgment of acquittal rendered by the Court of the V Addl. District & Sessions Judge, Mandya, in S.C.No.83/2015 and S.C.No.78/2016 dated 22.05.2017 acquitting the accused Nos.1 to 4 for offences punishable under Sections 143, 147, 341, 323, 307, 506 read with Section 149 of IPC, 1860. This appeal has been filed seeking reversal of the impugned judgment rendered by the Trial Court and consequently to convict the accused Nos.1 to 4 for the offences leveled against them.

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Heard the learned counsel Shri Harikrishnan for the appellant and so also learned counsel Shri C N Raju for respondent Nos.1 to 4 and learned HCGP for the State – Smt.K.P Yashoda.

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CRL.A No. 1956 of 2017

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Perused the judgment of acquittal rendered by the

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trial Court in S.C.No.83/2015 and S.C.No.78/2016 consisting the evidence of PWs.1 to 8, documents at Exs.P1 to 8 and MO.1.

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Criminal law was set into motion on receipt of the complaint at Ex.P5 and based upon the said complaint, case in C.C.No.115/2014 was registered against Accused Nos.2 to 4 and case against Accused No.1 was split up in C.C.No.1507/2015 and FIR was registered as per Ex.P6. Subsequently, the Investigating Officer had taken up the case for investigation and conducted investigation thoroughly by following the provision of Section 173 of Cr.P.C and filed charge sheet against the accused persons. The prosecution has facilitated the evidence by subjecting to examination several witnesses and got marked several documents. But the case has ended in acquittal. Even charges were not proved by the prosecution by facilitating worthwhile evidence. The trial Court appreciated the evidence on record and rendered acquittal judgment for the

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CRL.A No. 1956 of 2017

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offences which are reflected in the operative portion of the order and the said judgment is under challenge in this appeal by urging various grounds.

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Learned counsel Shri C N Raju for respondent Nos.1 to 4 / accused has filed a memo along with copy of the order sheet and compromise petition whereby the dispute in O.S.No.71/2015 has ended in compromise. The aforesaid case in O.S.No.71/2015 was initiated by plaintiff No.1 namely Smt.Aishwarya R and plaintiff No.2 namely Adrusta R against defendant No.1 / M.S Shivakumara Swamy, Defendant No.2 / T L Shivalingaiah, Defendant No.3 / Ajaj, and Defendant No.4. / Syed Dasthageer. During the pendency of the aforesaid case filed by the parties, Compromise Petition under Order 23 Rule 3 of C.P.C was filed and arrived at a settlement between the parties. In Para No.8 of the compromise petition, it is specifically stated that:

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Appeal preferred by 1^st defendant against Smita Ramu in appeal No.11/2020 was dismissed by the

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CRL.A No. 1956 of 2017

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Commissioner of Social Welfare Department and also 1^st defendant had agreed that no appeal will be preferred against the said order and also had undertaken to withdraw Crl.A.No.1956/2017 which is filed against Smita Ramu before the Hon’ble High Court. The 1^st defendant and plaintiff’s mother have initiated matrimonial proceedings seeking divorce. In this regard, the family Court passed an order that there will be no relationship of husband and wife between them and Smitha Ramu was not inclined to receive maintenance from the defendant. In Para No.11 it is specifically stated that complainant’s mother has agreed to compromise the case in C.C.No.535/2015 before the Court of Principal Senior Civil Judge and CJM, Mandya.

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Accordingly, both of them have agreed to close their matrimonial proceedings initiated in the appeal proceedings.

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Keeping in view the submission made by learned counsel appellant and counsel for respondent Nos.1 to 4 inclusive of learned HCGP for respondent No.5 and in view

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CRL.A No. 1956 of 2017

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of the petition filed under Order 23 rule 3 of C.P.C wherein

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both parties have closed the issues between them, this appeal does not have any force or substance any further in order to interfere with the impugned judgment rendered by the Trial Court. Consequently, this appeal deserves to be rejected. In terms of aforesaid reasons and findings we proceed to pass the following :

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ORDER

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The appeal filed by the appellant / complainant / victim under Section 372 of Cr.P.C is hereby rejected and consequent upon rejection of this appeal, the acquittal judgment rendered by the Trial Court in S.C.No.83/2015 and S.C.No.78/2016 in respect of accused Nos.1 to 4 is hereby confirmed.

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Whereas in this appeal I.A.No.2/2017 is filed by the appellant / complainant / victim seeking permission to prosecute this appeal. It is relevant to refer to the judgment of the Hon’ble Supreme Court of India in the case of

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Mallikarjun Kodagali (dead) represented through LRs

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CRL.A No. 1956 of 2017

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Vs. State of Karnataka and Others reported in 2019 SCC

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752 addressing the scope of Section 372 of Cr.P.C and so also Sections 2(wa), 2(d) and Section 378 – Right of ‘victim’ as defined in Section 2(wa) to appeal against acquittal under Section 372 proviso – Nature, Scope and Applicability – (1) A substantive right, (2) available against orders of acquittal rendered after 31.12.2009 (3) for exercising which right, no leave is required to be sought.

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Therefore, I.A.No.2/2017 filed seeking leave is only settled formalities of law. Consequently, I.A.No.2/2017 is taken on record and same is considered and granted permission to prosecute the appeal. Accordingly, I.A.No.2/2017 is hereby disposed of.

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Sd/JUDGE

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Sd/JUDGE

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Dr Shivakumarswami v. H B Ramu (Split Up in S.C.NO.78/2016)

Case brief

What is this about?

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Dr Shivakumarswami v. H B Ramu (Split Up in S.C.NO.78/2016)

Case brief

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What did the court decide?

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